Q&As

Is there any authority for a party suffering costs sanctions where they have mediated, but made no reasonable offer on a WPSATC?

read titleRead full title
Published on LexisPSL on 26/09/2016

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • Is there any authority for a party suffering costs sanctions where they have mediated, but made no reasonable offer on a WPSATC?
  • Costs sanctions
  • Conduct during mediation

Is there any authority for a party suffering costs sanctions where they have mediated, but made no reasonable offer on a WPSATC?

While the court cannot force parties to settle their differences outside the courtroom, the Court of Appeal in Halsey v Milton Keynes General NHS Trust made it clear that the courts can impose costs sanctions on those who unreasonably refuse to consider other methods of resolving their disputes.

Costs sanctions

The starting point for determining whether any costs sanctions will be applied for a refusal to engage in alternative dispute resolution (ADR) or unreasonable conduct during ADR is CPR 44.4(3)(a). This provides that in determining what costs are to be awarded to a party:

'(a) The court will also have regard to the conduct of all the parties, including in particular...

(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute.'

The Court of Appeal in Halsey set out six (non-exhaustive) factors that may be relevant in determining whether or not a party has unreasonably refused ADR:

  1. the nature of the dispute—some cases are intrinsically unsuitable for ADR:

    1. where there are issues of law or construction where a binding Precedent would be useful

    2. cases involving issues important to those in a particular trade or market

Popular documents